IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Shuba, :

:

Appellant :

:

 v. : No. 115 C.D. 2021

: Argued: May 23, 2024

Borough of Houston :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 13, 2024

William Shuba (Landowner)1 appeals the order of the Washington 

County (County) Court of Common Pleas (trial court) entering judgment in favor of 

the Borough of Houston (Borough) following a bench trial on his Complaint in 

Mandamus (Complaint) that sought to compel the Borough, through its enforcement 

officer, to enforce the provisions of Article IX of the Borough of Houston Zoning 

Ordinance (1985) (Ordinance),2relating to the construction of a commercial building 

1 At oral argument in this matter, it was first disclosed to this Court that Landowner is now 

deceased. However, we rely upon his counsel’s representations at argument that the instant case 

is not now moot. See, e.g., Great Valley School District v. Zoning Hearing Board of East 

Whiteland Township, 863 A.2d 74, 79 (Pa .Cmwlth. 2004) (“An attorney’s obligation to the court 

is one that is unique and must be discharged with candor and with great care. The court and all 

parties before the court rely upon representations made by counsel. We believe without 

qualification that an attorney’s word is his bond.”) (citation omitted).

2 Section 6107 of the Judicial Code states, in pertinent part:

(Footnote continued on next page...)
2

(a) General rule.--The ordinances of municipal corporations of this 

Commonwealth shall be judicially noticed.

(b) Manner of proving ordinances.--The tribunal may inform 

itself of such ordinances in such manner as it may deem proper . . . .

(c) Construction of ordinances.--The construction of such 

ordinances shall be made by the court and not by the jury and shall 

be reviewable.

42 Pa. C.S. §6107; see also Pa.R.E. 201 Cmt. (“In determining the law applicable to a matter, the 

judge is sometimes said to take judicial notice of law. In Pennsylvania, judicial notice of law has 

been regulated by decisional law, statute, and rule. See . . . [Section 6107 of the Judicial Code,] 

42 Pa. C.S. §6107 (judicial notice of municipal ordinances) . . . .”).

In relevant part, Section 295-28.A. of the Ordinance states: “A building permit shall be 

required prior to the erection . . . of any building or . . . prior to the use or change in use of a 

building or land . . . . It shall be unlawful for any person to commence work for the erection . . . 

of any building until a building permit has been duly issued therefor.” See also Section 180-1 of 

the Ordinance (“Upon completion of the authorized new construction . . . [or] change of use of 

building on land under the provisions of a building permit, such building shall not be occupied 

until an occupancy permit has been issued by the Borough Building Inspector.”).

In turn, Section 295-31.C. of the Ordinance states, in relevant part:

In case any building or structure is erected, constructed, . . . or 

maintained or any building structure . . . is used in violation of this 

Article IX, or of any ordinance or other regulation made under 

authority conferred hereby, the proper local authorities of the 

municipality, in addition to other remedies, may institute in the 

name of the municipality any appropriate action or proceedings to 

prevent such unlawful erection, construction, . . . maintenance or 

use; to restrain, correct, or abate such violation; to prevent the 

occupancy of said building [or] structure . . . ; or to prevent any 

illegal act, conduct, business or use in or about such premises.

(Emphasis added.)
3

on a lot in a residential zoning district and in the absence of a building permit. We 

affirm.

Landowner resides on a parcel of property in a Borough residential 

district. In June 2017, a neighboring landowner constructed a commercial building 

on a parcel of property adjacent to Landowner’s parcel. The adjacent parcel crosses 

the boundary between the Borough and the Borough of Canonsburg (Canonsburg) 

with approximately 90% of the building located in the Borough and 10% located in 

Canonsburg.3 The portion of the adjacent parcel in Canonsburg is zoned for 

commercial uses while, as indicated, the portion in the Borough is zoned for 

residential uses.4 The County’s tax parcel number for the adjacent parcel sets the 

parcel in Canonsburg and the neighboring landowner pays all of the local property 

taxes to Canonsburg. The neighboring landowner applied for and received all of the 

necessary permits from Canonsburg before constructing the commercial building.

On August 24, 2017, Landowner filed the instant Complaint seeking 

mandamus relief5to compel the Borough to enforce the provisions of the Ordinance. 

3

In pertinent part, a surveyor testified before the trial court: “Practically all of the building 

is in [the] Borough. Only a small corner of it, that being the southeastern corner is in 

[Canonsburg].” Reproduced Record (RR) at 26a.

4

See, e.g., Section 295-7 of the Ordinance (“When a district boundary line divides a lot 

held in single and separate ownership . . ., the regulations as to the use in the less restricted district 

shall extend over the portion of the lot in the more restricted district a distance of not more than 

100 feet beyond the district boundary line.”).

5 As this Court has explained:

The common law writ of mandamus lies to compel an 

official’s performance of a ministerial act or a mandatory duty. 

“The burden of proof falls upon the party seeking this extraordinary 

remedy to establish his legal right to such relief.” Mandamus 

requires “[1] a clear legal right in the plaintiff, [2] a corresponding 

(Footnote continued on next page...)
4

See Reproduced Record (RR) at 1a-7a. In pertinent part, the Complaint alleges: 

“[t]he Borough did not require the [neighboring] landowner to obtain a building 

permit in violation of [Article IX] of the [Ordinance]”; “[t]he Borough has not issued 

a certificate of use in violation of [Article IX] of the [O]rdinance”; Landowner “has 

on multiple occasions advised the [Borough] that the commercial building is 

illegally constructed in an area zoning residential”; the Borough “ha[s] failed to act 

upon [Landowner’s] notifications”; and Landowner “has no other adequate remedy 

at law to enforce the [Ordinance].” Id. at 3a-4a. Following a nonjury trial, the trial 

court issued an order entering judgment in the Borough’s favor and against 

Landowner,6 and Landowner then filed the instant timely appeal.

duty in the defendant, and [3] a lack of any other adequate and 

appropriate remedy at law.” Mandamus is not available to establish 

legal rights but only to enforce rights that have been established. As 

a high prerogative writ, mandamus is rarely issued and never to 

interfere with a public official’s exercise of discretion.

* * *

When the official refuses to exercise discretion, a writ of mandamus 

“will lie” to compel the official to do so. Notably, where a public 

official “is clothed with discretionary powers, and has exercised 

those powers, mandamus will not lie to compel a revision of the 

decision resulting from such exercise of discretion, though in fact, 

the decision may be wrong.”

Sinkiewicz v. Susquehanna County Board of Commissioners, 131 A.3d 541, 546 (Pa. Cmwlth. 

2015) (citations omitted and emphasis in original).

6

In relevant part, the trial court’s Opinion and Order states:

[The] Borough argued that because [Canonsburg] exercised 

its jurisdiction over the subject parcel, [it] did not have any 

jurisdiction over the property. At the time when Canonsburg issued 

its permits necessary to construct the building, all parties were 

(Footnote continued on next page...)
5

On appeal,7 Landowner claims: (1) the Borough should be mandated 

to enforce the Ordinance; and (2) the Borough’s actions caused damage to 

Landowner which Landowner is entitled to recover.8

As the Supreme Court has observed:

“Mandamus is an extraordinary writ that will only lie to 

compel official performance of a ministerial act or 

mandatory duty where there is a clear legal right in the 

plaintiff, a corresponding duty in the defendant, and want 

of any other appropriate or adequate remedy.” It may be 

used to compel performance of a ministerial duty, or to 

operating under the assumption that the parcel was in Canonsburg, 

because it had a [Canonsburg] Parcel [Identification] number and 

Canonsburg received all tax revenue from the parcel. The 

[Borough’s z]oning officer [] testified that he became aware of a 

dispute between the property owners over a road and he determined 

that [the adjoining landowner] had all the necessary permits from 

[Canonsburg] as he began construction. [The zoning officer] 

indicated that he gave deference to those permits issued by the 

neighboring municipality.

* * *

The [c]ourt found that the mandamus action must fail 

because [the Borough] exercised its discretion not to enforce its own 

ordinance by deferring to the actions taken by [Canonsburg] with 

respect to [the adjoining landowner’s] property.

Trial Ct. 11/6/20 Op.at 3-4.

7

“This Court’s review of a trial court’s denial of a writ of mandamus determines whether 

the trial court committed an error of law or abused its discretion, and whether substantial evidence 

exists to support its findings. Our scope of review on factual findings is deferential. Our standard 

of review of legal questions is de novo.” Sinkiewicz, 131 A.3d at 545 n.6 (citations omitted).

8

See Section 8303 of the Judicial Code, 42 Pa. C.S. §8303 (“A person who is adjudged in 

an action in the nature of mandamus to have failed or refused without lawful justification to 

perform a duty required by law shall be liable in damages to the person aggrieved by such failure 

or refusal.”). 
6

compel action in a matter involving judgment or 

discretion. However, it may not be used to direct the 

exercise of judgment or discretion in a particular way, or 

to direct the retraction or reversal of an action already 

taken. “Mandamus is a device that is available in our 

system to compel a tribunal or administrative agency to act 

when that tribunal or agency has been ‘sitting on its 

hands.’”

Chanceford Aviation Properties, L.L.P. v. Chanceford Township Board of 

Supervisors, 923 A.2d 1099, 1107-08 (Pa. 2007) (Chanceford) (citations omitted).

As outlined above, in this case, the trial court credited the testimony of 

the Borough’s zoning officer that he became aware of a dispute between Landowner 

and the adjoining property owner over a road dispute, and that he determined that 

the adjoining landowner had all the necessary permits from Canonsburg as he began 

construction of the commercial building. The trial court also credited the zoning 

officer’s testimony that he gave deference to those permits that had been issued by 

Canonsburg.

9

In addition, as stated above, Section 295-31.C. of the Ordinance 

states, in pertinent part, that the Borough “may institute . . . any appropriate action 

or proceedings” to prevent such a purportedly unlawful construction and use of the 

property, or to abate the alleged zoning violations once it was discovered that the 

building was constructed on land that was actually located in the Borough.

However, as indicated, mandamus may not be used to compel the 

Borough to exercise its discretion in some manner or to reverse its decision to forego 

enforcement of the Ordinance based on the adjoining landowner’s compliance with 

Canonsburg’s zoning ordinance. See Chanceford, 923 A.2d at 1108 (“[Mandamus] 

9 The trial court’s findings in this regard are amply supported by substantial record 

evidence. See RR at 104a-06a, 115a-17a, 120a-21a. As a result, these findings are binding on this 

Court in this appeal. See Sinkiewicz, 131 A.3d at 545 n.6 (“Our scope of review on factual findings 

is deferential. Reading Area Water Authority v. Schuylkill River Greenway Association, [100 A.3d 

572, 577 (Pa. 2014)].”).
7

may not be used to direct the exercise of judgment or discretion in a particular way, 

or to direct the retraction or reversal of an action already taken.”); see also Morgalo 

v. Gorniak, 134 A.3d 1139, 1145 (Pa. Cmwlth. 2016) (“[M]andamus may not be 

used to reverse actions the Department [of Corrections] has already taken; thus, it 

cannot be the basis upon which this Court may order the Department to stop the 

deductions [from a prison account] and return previously deducted funds. See 

[Chanceford].”).

Moreover, contrary to Landowner’s assertion in the Complaint, Section 

617 of the Pennsylvania Municipalities Planning Code (MPC)10 provides an 

adequate and available statutory remedy of which Landowner has failed to avail 

himself in this matter. It is settled that a writ of mandamus will not lie where, as 

here, Landowner has not first sought relief under Section 617 of the MPC. See, e.g., 

Hanson v. Lower Frederick Township Board of Supervisors, 667 A.2d 1221, 1223 

(Pa. Cmwlth. 1995) (“Since [S]ection 617 provides [the landowner] with a remedy, 

mandamus under such circumstances is not appropriate. Hellertown Manufacturing 

10 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10617. Section 617 states:

In case any building, structure, landscaping, or land is . . . erected, 

constructed, reconstructed, altered, converted, maintained or used in 

violation of any ordinance enacted under this act or prior enabling 

laws, . . . any aggrieved owner or tenant of real property who shows 

that his property or person will be substantially affected by the 

alleged violation, in addition to other remedies, may institute any 

appropriate action or proceeding to prevent, restrain, correct or abate 

such building, structure, landscaping or land, or to prevent, in or 

about such premises, any act, conduct, business or use constituting 

a violation. When any such action is instituted by a landowner or 

tenant, notice of that action shall be served upon the municipality at 

least 30 days prior to the time the action is begun by serving a copy 

of the complaint on the governing body of the municipality. No 

such action may be maintained until such notice has been given.
8

Company v. Scheiner, [506 A.2d 487, 489 (Pa. Cmwlth. 1986)] (mandamus will 

issue to compel performance of a mandatory act, where the right to relief is clear and 

no other adequate and appropriate remedy exists).”).11

11 See also Bell v. Township of Spring Brook, Pennsylvania (Pa. Cmwlth., No. 2253 C.D. 

2012, filed July 11, 2013), slip op. at 17-18, wherein we stated:

[O]ur Supreme Court’s decision in Frye [Construction, Inc. v. City 

of Monongahela, 584 A.2d 946 (Pa. 1991) (Frye),] does not compel 

the result [that the landowner] seeks here. That case involved a 

landowner’s suit against the city, its officers, and an adjacent 

landowner who obtained permission to build a storage building, but 

instead built a carrier pigeon loft in violation of the zoning 

ordinance. After complaining to the zoning authorities, the 

landowner filed suit in common pleas court. The landowner’s 

mandamus claim against the city was dismissed for failure to 

exhaust administrative and statutory remedies. At the outset of its 

opinion, the Supreme Court specifically stated the dismissal of the 

mandamus claim against the city was not before it. Id. [at 947]. As 

to the landowner’s enforcement action against the offending 

neighbor, however, the Supreme Court determined that equity 

action was appropriate and could proceed without requiring the 

landowner to first exhaust administrative remedies.

Here, unlike in Frye, we are not confronted with the 

propriety of an equity action against an offending neighbor, such 

as that sanctioned by the Supreme Court in Frye and expressly 

authorized under Section 617 of the MPC. Rather, this case 

concerns the propriety of [the landowner’s] mandamus action 

against the [t]ownship. In Frye, the Supreme Court expressly 

declined to address the propriety of the landowner’s mandamus 

action against the municipality. Thus, Frye does not support [the 

landowner’s] position here.

(Emphasis in original.); Grabowsky v. Borough of Whitehall (Pa. Cmwlth., No. 99 C.D. 2020, filed 

November 10, 2020), slip op. at 10 (“[G]enerally, courts may dismiss a mandamus action when 

there is a statutory remedy available. See Fassman v. Skrocki, 390 A.2d 336, 338 (Pa. Cmwlth. 

1978) (proper dismissal of mandamus action for failure to exhaust an adequate statutory remedy). 

As this Court recently confirmed, mandamus is not an appropriate remedy for an adjoining 

(Footnote continued on next page...)
9

Accordingly, the trial court’s order is affirmed.12

MICHAEL H. WOJCIK, Judge

landowner to obtain relief from a neighbor’s violation of an ordinance because a statute offers a 

remedy. See [Bell] (analyzing [Hanson]).”) (footnote omitted).

12 It is well settled that this Court may affirm on any basis appearing in the record. Kohl v. 

New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 973 n.12 (Pa. Cmwlth. 2015).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Shuba, :

:

Appellant :

:

 v. : No. 115 C.D. 2021

: 

Borough of Houston :

O R D E R

AND NOW, this 13th day of June, 2024, the order of the Washington 

County Court of Common Pleas dated November 6, 2020, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge